Delhi District Court
Royal Sundaram Alliance Insurance Co. ... vs Varuna Integrated Logistics Pvt. Ltd on 19 December, 2022
IN THE COURT OF MR. SATYABRATA PANDA, ADJ-04,
PATIALA HOUSE COURTS, NEW DELHI
CS NO.56865 OF 2016
Date of Institution:10.01.2014
Arguments heard on: 19.10.2014
Date of Judgement: 19.12.2022
Royal Sundaram Alliance Insurance Co. Ltd.
Subramanian Building
Second Floor, No.1, Club House Road
Annasalai, Chennai-600 002
...............Plaintiff
Versus
1. Varuna Integrated Logistics Pvt. Ltd.
Plot no.619, Rangpuri, Mahipalpur Extension
New Delhi-110037
2. Hindustan Coca Cola Beverages Pvt. Ltd.
13, Anul Fazal Road, Bengali Market
New Delhi-110001
...............Defendants
JUDGMENT
1. The plaintiff has filed the present suit for decree against the defendant no.1 for sum of ₹ 3,73,364/-along with interest @ 18% p.a.
2. The case of the plaintiff as set out in the plaint is as follows. The plaintiff is a company dealing in the business of general insurance in India. The defendant no.2 company obtained a marine open cargo policy bearing no.MC8687/L0HC000081000100 from the plaintiff. The CS NO.56865 OF 2016 ROYAL SUNDRAM ALLIANCE INSURANCE CO. LTD. VS. VARUAN INTEGRATED L OGISTICS PVT LTD. page no.1 defendant no.1 is a carrier dealing with the business of transportation of consignments. The defendant no.2 dispatched a consignment under invoice no.62349 dated 28/05/2012 of Amcor Rigid Plastics India Pvt. Ltd. and ZP821079 dated 28/05/2012 vide CN no.301247 dated 28/05/2012. The said consignment was duly insured under the aforesaid marine cargo policy with the plaintiff. The defendant no.1 after accepting the said consignment from the defendant no.2 for the transportation of the same was under the obligation and duty to deliver the said consignment at its destination in safe and sound condition. However, the consignment was received in a damaged condition. The defendant no.2 reported the matter to the defendant no.1 regarding the serious damages to the consignment and also lodged a claim with the defendant no.1. Thereafter, the defendant no.1 issued a damage certificate to the defendant no.2, but failed to pay to defendant no.2 for the damages suffered by the defendant no.2. Since the consignment was duly insured with the plaintiff, the defendant no.2 lodged an insurance claim with the plaintiff in respect of the loss suffered as a result of the damages to the consignment due to mishandling by the defendant no.1. On receipt of the claim from the defendant no.2, the plaintiff appointed an independent and duly licensed surveyor being Skyline Insurance Surveyors & Loss Assessors Pvt. Ltd. to survey and assess the loss. The said surveyor submitted his final survey report recommending settlement of the claim of the defendant no.2. The plaintiff in terms of the survey report and as per CS NO.56865 OF 2016 ROYAL SUNDRAM ALLIANCE INSURANCE CO. LTD. VS. VARUAN INTEGRATED L OGISTICS PVT LTD. page no.2 the terms and conditions of the policy, duly approved, paid and settled the insurance claim of the defendant no.2 for a sum of ₹ 3,73,364/- towards full and final settlement of the claim of the defendant no.2. On receipt of the said amount of the insurance claim, the defendant no.1 duly executed letter of subrogation and special power of attorney in favour of the plaintiff authorising the plaintiff to recover sum of ₹ 3,73,364/- from the defendant no.1. Even otherwise also, after settling and paying the insurance claim to the defendant no.2, the plaintiff under the terms and conditions of the insurance policy in question got the legal right for recovery of the amount from the defendant no.1 who was the carrier of the consignment. It is the case of the plaintiff that the damages were caused to the consignment due to carelessness by the defendant no.1, and as such the defendant no.1 was liable for the damages. This, in brief, is the case of the plaintiff, on the basis of which the plaintiff has filed the present suit.
3. The defendant no.1 has filed its written statement in which the defendant no.1 has denied liability for the sums as claimed in the plaint. It is stated that there was no privity of contract between the plaintiff and the defendant no.1 and that the defendant no.1 had no duty or obligation towards the plaintiff and that the plaintiff had no cause of action to file the present suit. It is further the case of the defendant no.1 that the present suit was not maintainable before this Court due to lack of territorial jurisdiction in as much as no part of the cause of action has arisen within the CS NO.56865 OF 2016 ROYAL SUNDRAM ALLIANCE INSURANCE CO. LTD. VS. VARUAN INTEGRATED L OGISTICS PVT LTD. page no.3 jurisdiction of this Court. It is the case of the defendant no.1 that the consignment was booked from Pune, Maharashtra to Kheda, Gujarat and that the accident occurred in Maharashtra, hence no part of cause of action arose within the jurisdiction of this Court. It is further the case of the defendant no.1 in the written statement that the truck carrying the consignment was toppled and due to a pure accident and certain articles loaded in the truck got damaged and there was neither any negligence nor carelessness on the part of the defendant no.1. It is the case of the defendant no.1 that as the consignment was insured with the plaintiff, as such the sole responsibility to pay for damages suffered by the defendant no.2 was upon the plaintiff and accordingly the plaintiff as per the insurance policy settled and paid the claims for damages to the defendant number 2. It is further stated that the defendant no.1 had issued a certificate of facts dated 15/06/2012 certifying the damages without prejudice to its rights, contentions and immunities and that the same was issued at the request of the defendant no.2 solely for enabling it to lodge a claim against the insurer. It is further the case of the defendant no.1 that the agreement of subrogation and special power of attorney dated 05/12/2012 alleged to have been executed between the plaintiff and the defendant no.2 did not confer any legal right or authority to the plaintiff to institute the present suit against the defendant no.1.
4. The defendant no.2 did not appear in the suit despite service and was proceeded ex parte in the suit.
CS NO.56865 OF 2016 ROYAL SUNDRAM ALLIANCE INSURANCE CO. LTD. VS. VARUAN INTEGRATED L OGISTICS PVT LTD. page no.4
5. Vide order dated 07/11/2014, the following issues were framed in the suit:
1. Whether the plaintiff is entitled for a decree of recovery of amount of ₹ 3,73,364/- as prayed for? OPP
2. If the Issue no.1 is proved in affirmative, whether the plaintiff is entitled for pendente lite and future interest as prayed for and if so, at what rate? OPP
3. Whether there is no privity of contract between the plaintiff and defendant no.1? OPD
4. Whether the suit is without any cause of action, liable to be dismissed? OPD
5. Whether the plaintiff has not come to the court with clean hands? OPD
6. Whether the court has no territorial jurisdiction to entertain and try the suit? OPD
7. Relief.
6. In support of its case, the plaintiff has led its evidence, both oral as well as documentary. The plaintiff has examined as PW-1, Mr. Satinder Singh, who is an officer and authorised representative of the plaintiff company. He has been examined to prove the case of the plaintiff in general and he has tendered his affidavit in evidence Ex.PW-1/A in which he has deposed along the lines of the plaint.
7. The plaintiff has also examined PW-2, Mr. Gautam Purohit, who is an officer of Skyline Insurance Surveyors and Loss Assessors Pvt. Ltd. and he has tendered his affidavit in evidence Ex.PW-2/A. He has been examined to prove the surveyor's report dated 13/06/2012. CS NO.56865 OF 2016 ROYAL SUNDRAM ALLIANCE INSURANCE CO. LTD. VS. VARUAN INTEGRATED L OGISTICS PVT LTD. page no.5
8. In support of its case, the defendant no.1 has examined DW-1, Mr. Narender, who is the general attorney of the defendant no.1. He has been examined to prove the case of the defendant no.1 in general and he has tendered his affidavit in evidence Ex.DW-1/A in which he has deposed along the lines of the written statement of the defendant no.1.
9. The learned counsel for the plaintiff has referred to the relevant pleadings and evidence, and has submitted that the accident was caused due to the negligence of defendant no.1 due to which damages were suffered by the defendant no.2. It is submitted that as carrier of the consignment, defendant no.1 owed a duty of care to the defendant no.2 which was breached when the accident was caused due to its negligence. The learned counsel for the plaintiff has referred to the surveyor's report dated 13/06/2012 Ex.PW- 1/8 and the certificates of facts Ex.PW-1/5 issued by the defendant no.1 to the defendant no.2 and has submitted that the liability of the defendant no.1 arising out of the accident is clearly proved through these documents. It is further submitted that the plaintiff as the insurance company has honoured the claims of the defendant no.2, and now by way of subrogation the plaintiff has stepped into the shoes of the defendant no.2. Accordingly, it is submitted that the defendant no.1 is now liable for the damages claimed in the present suit to the plaintiff.
CS NO.56865 OF 2016 ROYAL SUNDRAM ALLIANCE INSURANCE CO. LTD. VS. VARUAN INTEGRATED L OGISTICS PVT LTD. page no.6
10. On the other hand, the learned counsel for the defendant no.1 has submitted that there was no privity of contract between the defendant no.1 and the plaintiff and that the defendant no.1 did not have any liability towards the plaintiff. It is submitted that the accident was not due to the negligence of the defendant no.1, and as such in any case the defendant no.1 had never been liable for any damages to the defendant no.2. It is further submitted that in any event the plaintiff could not claim of damages from the defendant no.1. It is submitted that the defendant no.2 had not subrogated any rights to the plaintiff to sue the defendant no.1. It is further submitted that in the certificate of facts Ex.PW-1/5 given by the defendant no.1, the same was solely for the purpose of the defendant no.2 for its claims before the plaintiff and that a clear disclaimer was given that the defendant no.1 was not liable. It is further submitted that the present suit is without any cause of action. It is also submitted that this Court lacks the territorial jurisdiction to entertain the present suit.
11. I have heard the submissions of the learned counsel for the parties and I have perused the record including the pleadings and evidence.
12. My issue -wise findings are as follows.
Issue 6:Whether the court has no territorial jurisdiction to entertain and try the suit? OPD CS NO.56865 OF 2016 ROYAL SUNDRAM ALLIANCE INSURANCE CO. LTD. VS. VARUAN INTEGRATED L OGISTICS PVT LTD. page no.7
13. As this issue is on the point of territorial jurisdiction which goes to the root of the matter, I shall deal with this issue first.
14. It is the case of the plaintiff that this Court has the territorial jurisdiction to entertain the present suit as both the defendant companies have their registered offices within the territorial jurisdiction of this Court. It is the case of the plaintiff that the defendant no.1 company has its office in Mahipalpur Extension which is located within the territorial jurisdiction of this Court. It is the case of the plaintiff that the defendant no.2 company has its office in Bengali Market which is also located within the territorial jurisdiction of this Court.
15. On the other hand, it is the case of the defendant no.1 that no cause of action has arisen within the territorial jurisdiction of this Court and as such this Court has no territorial jurisdiction in the present suit. It is the case of the defendant no.1 that the consignment was booked from Pune, Maharashtra to Kheda, Gujarat and the accident occurred in Maharashtra on 29/05/2012 and as such there is no cause of action arising within the territorial jurisdiction of this Court. It is further submitted that the registered address of the defendant no.2 was at Gurgaon.
16. It is the case of the plaintiff that the registered offices of both the defendants were within the territorial jurisdiction of this Court. The registered address of the defendant no.2 is mentioned as 13, Abul Fazal Road, Bengali Market, New Delhi 110001 in the letter Ex.PW-1/6 issued by the CS NO.56865 OF 2016 ROYAL SUNDRAM ALLIANCE INSURANCE CO. LTD. VS. VARUAN INTEGRATED L OGISTICS PVT LTD. page no.8 defendant no.2 to the defendant no.1. If it was the case of the defendant no.1 that the registered address of the defendant no.2 was actually at Gurgaon, then the onus was upon the defendant no.1 to prove the same, however, there is no evidence led by the defendant no.1 to show that the registered address of defendant no.2 was at Gurgaon and not at New Delhi. Hence, the plaintiff was entitled under clause (a) of Section 20 CPC to institute the present suit before this Court. In any case, since the defendant no.2 was proceeded ex parte and there was no appearance by the defendant no.2, there would be acquiescence to the jurisdiction of this Court. Admittedly, the registered office of the defendant no.1 is within the jurisdiction of this Court. Hence, the plaintiff was entitled even under clause
(b) of Section 20 CPC to institute the present suit before this Court. Accordingly, this Issue is decided in favour of the plaintiff and against the defendant.
Issue 4:Whether the suit is without any cause of action, liable to be dismissed? OPD Issue 3:Whether there is no privity of contract between the plaintiff and defendant no.1? OPD
17. Both these issues are interrelated and are hence, taken up together.
Re: Authorisation for filing suit
18. It is the case of the defendant no.1 that there is no cause of action for filing the present suit in as much as the suit has not been filed by a person duly authorised by the plaintiff company. It is submitted by the learned counsel for the CS NO.56865 OF 2016 ROYAL SUNDRAM ALLIANCE INSURANCE CO. LTD. VS. VARUAN INTEGRATED L OGISTICS PVT LTD. page no.9 defendant no.1 that the plaintiff has failed to prove the authorisation to institute the present suit. It is the case of the defendant no.1 that the plaint has been signed by one Mr. S. Srinivasan on the basis of a letter of authority dated 19.07.2007 (Mark-Z) signed by one Mr. Antony Jacob who has purported to execute the letter of authority on the basis of a board resolution dated 06.05.2004. It is the case of the defendant no.1 that the board resolution dated 06.05.2004 has not been placed on the record by the plaintiff and that the letter of authority dated 19.07.2007 (Mark-Z) has not been proved.
19. I find that the defendant no.1 has in paragraph 8 of the preliminary objections portion of the written statement, taken a very specific objection that the suit was not signed, verified and filed by a duly authorised and competent person. The defendant no.1 has also taken the specific objection in its written statement that the resolution dated 06/05/2004 on the basis of which Mr. Antony Jacob, Managing Director had authorised Mr. S. Srinivasan through the letter of authority dated 19/07/2007 was not filed in the suit.
20. Paragraph 1 of the plaint states that Mr. G. Vinay Prakash is the officer and attorney of the plaintiff company who has been authorised to sign, verify and institute the suit on behalf of the plaintiff. The suit is however, signed and verified by Mr. S. Srinivasan and is supported by the affidavit of Mr. S. Srinivasan who states in his affidavit that he is an officer and attorney of the plaintiff. From a CS NO.56865 OF 2016 ROYAL SUNDRAM ALLIANCE INSURANCE CO. LTD. VS. VARUAN INTEGRATED L OGISTICS PVT LTD. page no.10 perusal of the record, I find that the plaintiff has only filed copy of the letter of authority dated 19/07/2007 (Mark-Z) which has only been marked and is not an exhibited document as the original was not produced. Mark-Z is executed by one Mr. Antony Jacob who is stated to be the Managing Director of the plaintiff company. Through Mark-Z Mr. Antony Jacob purports to authorise Mr. S. Srinivasan to institute the suit on the basis of a board resolution dated 06/05/2004. However, the board resolution dated 06/05/2004 on the basis of which Mr. Antony Jacob had purported to execute the Mark-Z was never produced on the record. On behalf of the plaintiff, neither Mr. S. Srinivasan, who is purported to have been authorised by Mark-Z, nor Mr. Antony Jacob, who has purported to have executed Mark-Z, were examined. Mark-Z is thus not proved. The plaintiff has examined as PW-1, Mr. Satinder Singh who has deposed in this affidavit in evidence Ex.PW-1/A1 that he is an officer and attorney of the plaintiff. But there is no authorisation which has been placed on the record in favour of PW-1 as well. PW-1 has also admitted in his cross-examination that it is not he who has signed the plaint and its supporting affidavit.
21. It would be appropriate to refer to the judgment of the Hon'ble High Court of Delhi in Nibro Limited v. National Insurance Co. Ltd., 1990 SCC OnLine Del 65 : ILR (1991) 2 Del 172 : (1990) 41 DLT 633 : AIR 1991 Del 25, in which it was held as under:
CS NO.56865 OF 2016 ROYAL SUNDRAM ALLIANCE INSURANCE CO. LTD. VS. VARUAN INTEGRATED L OGISTICS PVT LTD. page no.11 "22. On the analysis of the judgments, it is clear that Order, 29, Rule 1 of the Code of Civil Procedure does not authorise persons mentioned therein to institute suits on behalf of the Corporation. It only authorises them to sign and verify the pleadings on behalf of the Corporation.
23. In my view, the provisions of Companies Act, 1956 and particularly Sections 14, 26, 28 Schedule I, Table A and Section 291 are very clear.
24. It is well-settled that under Section 291 of the Companies Act except where express provision is made that the powers of a company in respect of a particular matter are to be exercised by the company in general meeting--in all others cases the Board of Directors are entitled to exercise all its powers. Individual directors have such powers only as are vested in them by the Memorandum and Articles. It is true that ordinarily the court will not unsuit a person on account of technicalities.
However, the question of authority to institute a suit on behalf of a company is not a technical matter. It has far-reaching effects. It often affects policy and finances of the company. Thus, unless a power to institute a suit is specifically conferred on a particular director, he has no authority to institute a suit on behalf of the company. Needless to say that such a power can be conferred by the Board of Directors only by passing a resolution in that regard.
25. Chapter IV of the Delhi High Court (Original Side) Rules deal with the question of presentation of suits. Under this Rule, suit can be presented by a duly authorised agent or by an advocate duly appointed by him for the purpose. This authorization, in my view, in the case of a company can be given only after a decision to institute a suit is taken by the Board of Directors of the company. The Board of Directors may in turn authorise a particular director, principal officer or the secretary to institute a suit.
CS NO.56865 OF 2016 ROYAL SUNDRAM ALLIANCE INSURANCE CO. LTD. VS. VARUAN INTEGRATED L OGISTICS PVT LTD. page no.12
26. The plaintiff has not placed on record any resolution passed by the company authorising Shri G. Jhajharia to institute the suit. Shri G. Jhajharia did not come forward to make a statement that he was in a position to depose to the facts of the case. In the plaint signed by him, he claims to be a principal officer and director, but there is no evidence on record to indicate that he had the authority to institute the suit. The Memorandum and Articles of Association of the plaintiff company are also not placed on record. Even after the suit was instituted by Shri G. Jhajharia, no resolution was passed by the company ratifying this action. No such decision of the Board of Directors is placed on record in the present case. The plaintiff has examined Shri Ashok Kumar Jhajharia. He has placed on record Ext. PW 2/1 which is the resolution of the Board of Directors re-appointing Shri G. Jhajharia as the Director but this resolution does not empower Shri G. Jhajharia as a Director to institute the present suit. Shri Ashok Kumar Jhajharia has stated that he was handling day-to- day management of the plaintiff company including the insurance part of it. He however, does not state that Mr. G. Jhajharia was handling day-to-day management or was incharge of the insurance claim.
27. Thus, there is no evidence to prove that Shri G. Jhajharia had the authority to institute the present suit."
(Emphasis supplied by me)
22. In the present suit, it was incumbent upon the plaintiff to prove the authorisation of Mr. S. Srinivasan to institute the suit by proving the board resolution dated 06/05/2004 and the letter of authority dated 19/07/2007 (Mark-Z). However, the board resolution dated 06/05/2004 was not CS NO.56865 OF 2016 ROYAL SUNDRAM ALLIANCE INSURANCE CO. LTD. VS. VARUAN INTEGRATED L OGISTICS PVT LTD. page no.13 produced. Even with respect to the letter of authority dated 19/07/2007 (Mark-Z) only a copy was filed and not the original, hence the same was not exhibited. Since the defendant no.1 had taken a specific objection in its written statement, the plaintiff very well had notice of the objection and could have corrected the error at any stage of the suit by seeking permission to produce the board resolution dated 06/05/2004 and the letter of authority dated 19/07/2007, however the same was not done.
23. Thus, I would hold that the plaintiff has failed to prove that Mr. S. Srinivasan was duly authorised to institute the present suit. The failure on the part of the plaintiff to prove the due authorisation to institute the present suit is not a mere technicality, but goes to the root of the matter.
Re: Privity of contract between plaintiff and defendant no.1
24. It is the case of the defendant no.1 that the plaintiff has no cause of action against the defendant no.1 as there was no privity of contract between the plaintiff and the defendant no.1, and that the privity of contract was only between the defendant no.1 and the defendant no.2.
25. It is an admitted position that there is no contract between the plaintiff and the defendant no.1. The contract of carrier was between the defendant no.2 and the defendant no.1. The contract of insurance was between the plaintiff and the defendant no.2. The plaintiff has filed the present suit against the defendant no.1 on the basis of the Agreement of Subrogation cum Special Power of Attorney dated CS NO.56865 OF 2016 ROYAL SUNDRAM ALLIANCE INSURANCE CO. LTD. VS. VARUAN INTEGRATED L OGISTICS PVT LTD. page no.14 05/10/2012 (Ex.PW-1/10) being between the plaintiff and the defendant no.2.
26. The defendant no.1 has raised an objection that Ex.PW-
1/10 is only signed by the defendant no.2 and not by the plaintiff and as such is invalid and without force. It is also the case of the defendant no.1 that Ex.PW-1/10 has not been proved by the plaintiff as the defendant no.2 who is purported to be the subrogor has not entered the witness box to prove Ex.PW-1/10.
27. The defendant no.1 is a third-party to the Ex.PW-1/10 and has denied the document being Ex.PW-1/10. To prove the execution of the Ex.PW-1/10 it was incumbent upon the plaintiff to call the subrogor i.e. defendant no.2 into the witness box since the document is claimed to be executed by defendant no.2, however, the same was not done by the plaintiff. The question of admissibility of a document is different from proof of execution of the document. Merely because the plaintiff has produced the original document which is exhibited, the same did not dispense with the proof of the document. Since, it is the case of the plaintiff that the defendant no.2 had executed Ex.PW-1/10 in favour of the plaintiff, it was incumbent upon the plaintiff to lead the evidence by calling upon defendant no.2 into the witness box. However, this was never done. The plaintiff has only examined PW-1 Mr. Satinder Singh who is not a signatory to the Ex.PW-1/10 and he has specifically deposed in his cross examination that has not individually handled or been involved in the present case and was CS NO.56865 OF 2016 ROYAL SUNDRAM ALLIANCE INSURANCE CO. LTD. VS. VARUAN INTEGRATED L OGISTICS PVT LTD. page no.15 giving evidence on the basis of records. PW-1 could not have proved the Ex.PW-1/10. In the result, I would thus hold that the plaintiff has failed to prove Ex.PW-1/10.
28. Even assuming that the subrogation is proved, even then I find that there is another major hurdle in the way of the plaintiff. The plaintiff has instituted the present suit in its own name and not in the name of the assured. An agreement of subrogation between the defendant no.2 and the plaintiff would only entitle the plaintiff to sue the defendant no.1 in the name of the defendant no.2 and not in its own name. Ultimately, there is no privity of contract between the plaintiff and the defendant no.1. The agreement of subrogation would permit the plaintiff to sue the defendant no.1 in the name of the defendant no.2. However, what the plaintiff has done in the present case is to sue the defendant no.1 in its own name. It is important to bear in mind that subrogation is not the same as an assignment.
29. In this regard, I would refer to the decision of the Hon'ble Supreme Court in Economic Transport Organization v. Charan Spg. Mills (P) Ltd., (2010) 4 SCC 114, the relevant portion of which is extracted hereunder:
"22. In Banque Financiere de la Cite v. Parc (Battersea) Ltd. [(1999) 1 AC 221 : (1998) 2 WLR 475 : (1998) 1 All ER 737 (HL)] , the House of Lords explained the difference between subrogations arising from express or implied agreement of the parties: (AC pp. 231 F-232 A) CS NO.56865 OF 2016 ROYAL SUNDRAM ALLIANCE INSURANCE CO. LTD. VS. VARUAN INTEGRATED L OGISTICS PVT LTD. page no.16 "... there was no dispute that the doctrine of subrogation in insurance rests upon the common intention of the parties and gives effect to the principle of indemnity embodied in the contract. Furthermore, Your Lordships drew attention to the fact that it is customary for the assured, on payment of the loss, to provide the insurer with a letter of subrogation, being no more nor less than an express assignment of his rights of recovery against any third party. Subrogation in this sense is a contractual arrangement for the transfer of rights against third parties and is founded upon the common intention of the parties. But the term is also used to describe an equitable remedy to reverse or prevent unjust enrichment which is not based upon any agreement or common intention of the party enriched and the party deprived. The fact that contractual subrogation and subrogation to prevent unjust enrichment both involve transfers of rights or something resembling transfers of rights should not be allowed to obscure the fact that one is dealing with radically different institutions. One is part of the law of contract and the other part of the law of restitution."
23. An "assignment" on the other hand, refers to a transfer of a right by an instrument for consideration. When there is an absolute assignment, the assignor is left with no title or interest in the property or right, which is the subject-matter of the assignment. The difference between "subrogation" and "assignment" was stated in Insurance Law by MacGillivray & Parkington (7th Edn.) thus:
"Both subrogation and assignment permit one party to enjoy the rights of another, but it is well established that subrogation is not a species of assignment. Rights of subrogation vest by operation of law rather than as the CS NO.56865 OF 2016 ROYAL SUNDRAM ALLIANCE INSURANCE CO. LTD. VS. VARUAN INTEGRATED L OGISTICS PVT LTD. page no.17 product of express agreement. Whereas rights of subrogation can be enjoyed by the insurer as soon as payment is made, an assignment requires an agreement that the rights of the assured be assigned to the insurer. The insurer cannot require the assured to assign to him his rights against third parties as a condition of payment unless there is a special clause in the policy obliging the assured to do so. This distinction is of some importance, since in certain circumstances an insurer might prefer to take an assignment of an assured's rights rather than rely upon his rights of subrogation. If, for example, there was any prospect of the insured being able to recover more than his actual loss from a third party, an insurer, who had taken an assignment of the assured's rights, would be able to recover the extra money for himself whereas an insurer who was confined to rights of subrogation would have to allow the assured to retain the excess.
Another distinction lies in the procedure of enforcing the rights acquired by virtue of the two doctrines. An insurer exercising rights of subrogation against third parties must do so in the name of the assured. An insurer who has taken a legal assignment of his assured's rights under statute should proceed in his own name...."
24. The difference between subrogation and assignment was highlighted by the Court of Appeal thus in James Nelson & Sons Ltd. v. Nelson Line (Liverpool) Ltd. [(1906) 2 KB 217 (CA)] : (KB pp. 222-23) "... The way in which the underwriters come in is only by way of subrogation to the rights of the assured. Their right is not that of assignees of the cause of action; ... Therefore, they could only be entitled by way of subrogation to the plaintiffs' rights. What is CS NO.56865 OF 2016 ROYAL SUNDRAM ALLIANCE INSURANCE CO. LTD. VS. VARUAN INTEGRATED L OGISTICS PVT LTD. page no.18 the nature of their right by way of subrogation? It is the right to stand in the shoes of the persons whom they have indemnified, and to put in force the right of action of those persons; but it remains the plaintiffs' right of action, although the underwriters are entitled to deduct from any sum recovered the amount to which they have indemnified the plaintiffs, and although they may have provided the means of conducting the action to a termination. It is not a case in which one person is using the name of another merely as a nominal plaintiff for the purpose of bringing an action in which he alone is really interested; for the plaintiffs here have a real and substantial interest of their own in the action."
25. The difference between assignment and subrogation was also explained by the Madras High Court in Vasudeva Mudaliar v. Caledonian Insurance Co. [AIR 1965 Mad 159] thus: (AIR p. 160, paras 4-5) "4. ... In other words, arising out of the nature of a contract of indemnity, the insurer, when he has indemnified the assured, is subrogated to his rights and remedies against third parties who have occasioned the loss. The right of the insurer to subrogation or to get into the shoes of the assured as it were, need not necessarily flow from the terms of the motor insurance policy, but is inherent in and springs from the principles of indemnity.
5. Where, therefore, an insurer is subrogated to the rights and remedies of the assured, the former is to be more or less in the same position as the assured in respect of third parties and his claims against them founded on tortious liability in cases of motor accidents. But it should be noted that the fact that an insurer is subrogated to the CS NO.56865 OF 2016 ROYAL SUNDRAM ALLIANCE INSURANCE CO. LTD. VS. VARUAN INTEGRATED L OGISTICS PVT LTD. page no.19 rights and remedies of the assured does not ipso jure enable him to sue third parties in his own name. It will only entitle the insurer to sue in the name of the assured, it being an obligation of the assured to lend his name and assistance to such an action. By subrogation, the insurer gets no better rights or no different remedies than the assured himself. Subrogation and its effect are, therefore, not to be mixed up with those of a transfer or any assignment by the assured of his rights and remedies to the insurer. An assignment or a transfer implies something more than subrogation, and vests in the insurer the assured's interest, rights and remedies in respect of the subject-matter and substance of the insurance. In such a case, therefore, the insurer, by virtue of the transfer or assignment in his favour, will be in a position to maintain a suit in his own name against third parties."
26. Subrogation, as an equitable assignment, is inherent, incidental and collateral to a contract of indemnity, which occurs automatically, when the insurer settles the claim under the policy, by reimbursing the entire loss suffered by the assured. It need not be evidenced by any writing. But where the insurer does not settle the claim of the assured fully, by reimbursing the entire loss, there will be no equitable assignment of the claim enabling the insurer to stand in the shoes of the assured, but only a right to recover from the assured, any amount remaining out of the compensation recovered by the assured from the wrongdoer, after the assured fully recovers his loss. To avoid any dispute with the assured as to the right of subrogation and extent of its rights, the insurers usually reduce the terms of subrogation into writing in the form of a letter of subrogation which enables and authorises the insurer to recover the amount settled and paid by the insurer, from the third-party wrongdoer as a subrogee-cum-attorney.
CS NO.56865 OF 2016 ROYAL SUNDRAM ALLIANCE INSURANCE CO. LTD. VS. VARUAN INTEGRATED L OGISTICS PVT LTD. page no.20
27. When the insurer obtains an instrument from the assured on settlement of the claim, whether it will be a deed of subrogation, or subrogation-cum- assignment, would depend upon the intention of parties as evidenced by the wording of the document. The title or caption of the document, by itself, may not be conclusive. It is possible that the document may be styled as "subrogation" but may contain in addition an assignment in regard to the balance of the claim, in which event it will be a deed of subrogation-cum-assignment. It may be a pure and simple subrogation but may inadvertently or by way of excessive caution use words more appropriate to an assignment. If the terms clearly show that the intention was to have only a subrogation, use of the words "assign, transfer and abandon in favour of" would in the context be construed as referring to subrogation and nothing more.
28. We may, therefore, classify subrogations under three broad categories:
(i) subrogation by equitable assignment;
(ii) subrogation by contract; and
(iii) subrogation-cum-assignment.
28.1. In the first category, the subrogation is not evidenced by any document, but is based on the insurance policy and the receipt issued by the assured acknowledging the full settlement of the claim relating to the loss. Where the insurer has reimbursed the entire loss incurred by the assured, it can sue in the name of the assured for the amount paid by it to the assured. But where the insurer has reimbursed only a part of the loss, in settling the insurance claim, the insurer has to wait for the assured to sue and recover compensation from the wrongdoer; and when the assured recovers compensation, the assured is entitled to first appropriate the same towards the balance of his loss (which was not received from the insurer) so that he gets full reimbursement of his loss and the CS NO.56865 OF 2016 ROYAL SUNDRAM ALLIANCE INSURANCE CO. LTD. VS. VARUAN INTEGRATED L OGISTICS PVT LTD. page no.21 costs, if any, incurred by him for such recovery. The insurer will be entitled only to whatever balance remaining, for reimbursement of what it paid to the assured.
28.2. In the second category, the subrogation is evidenced by an instrument. To avoid any dispute about the right to claim reimbursement, or to settle the priority of inter se claims or to confirm the quantum of reimbursement in pursuance of the subrogation, and to ensure cooperation by the assured in suing the wrongdoer, the insurer usually obtains a letter of subrogation in writing, specifying its rights vis-à-vis the assured. The letter of subrogation is a contractual arrangement which crystallises the rights of the insurer vis-à-vis the assignee. On execution of a letter of subrogation, the insurer becomes entitled to recover in terms of it, a sum not exceeding what was paid by it under the contract of insurance by suing in the name of the assured. Even where the insurer had settled only a part of the loss incurred by the assured, on recovery of the claim from the wrongdoer, the insurer may, if the letter of subrogation so authorises, first appropriate what it had paid to the assured and pay only the balance, if any, to the assured.
28.3. The third category is where the assured executes a letter of subrogation-cum-assignment enabling the insurer retain the entire amount recovered (even if it is more than what was paid to the assured) and giving an option to sue in the name of the assured or to sue in its own name.
29. In all three types of subrogation, the insurer can sue the wrongdoer in the name of the assured. This means that the insurer requests the assured to file the suit/complaint and has the option of joining as co-plaintiff. Alternatively, the insurer can obtain a special power of attorney from the assured and then to sue the wrongdoer in the name of the assured as his attorney.
CS NO.56865 OF 2016 ROYAL SUNDRAM ALLIANCE INSURANCE CO. LTD. VS. VARUAN INTEGRATED L OGISTICS PVT LTD. page no.22
30. The assured has no right to deny the equitable right of subrogation of the insurer in accordance with law, even whether there is no writing to support it. But the assured whose claim is settled by the insurer, only in respect of a part of the loss may insist that when compensation is recovered from the wrongdoer he will first appropriate the same, to recover the balance of his loss. The assured can also refuse to execute a subrogation-cum- assignment which has the effect of taking away his right to receive the balance of the loss. But once a subrogation is reduced to writing, the rights inter se between the assured and the insurer will be regulated by the terms agreed, which is a matter of negotiation between the assured and the insurer.
31. If a letter of subrogation containing terms of assignment is to be treated only as an assignment by ignoring the subrogation, there may be the danger of the document itself becoming invalid and unenforceable, having regard to the bar contained in Section 6 of the Transfer of Property Act, 1882 ("the TP Act", for short).
32. Section 6 of the Transfer of Property Act, 1882 provides that property of any kind may be transferred except as otherwise provided by that Act or by any other law for the time being in force. Clause (e) of the said section provides that mere right to sue cannot be transferred.
33. Section 130 provides the manner of transfer of actionable claims. Section 3 defines an "actionable claim" as:
(i) any debt (other than a debt secured by mortgage of immovable property or by hypothecation or pledge of movable property) or
(ii) any beneficial interest in movable property not in the possession, either actual or constructive of the claimant, which the CS NO.56865 OF 2016 ROYAL SUNDRAM ALLIANCE INSURANCE CO. LTD. VS. VARUAN INTEGRATED L OGISTICS PVT LTD. page no.23 civil courts recognises as affording grounds for relief.
34. A "debt" refers to an ascertained sum due from one person to another, as contrasted from unliquidated damages and claims for compensation which require ascertainment/assessment by a court or tribunal before it becomes due and payable. A transfer or assignment of a mere right to sue for compensation will be invalid having regard to Section 6(e) of the TP Act. But when a letter of subrogation-cum-assignment is executed, the assignment is interlinked with subrogation, and not being an assignment of a mere right to sue, will be valid and enforceable.
35. The principles relating to subrogation can therefore be summarised thus:
(i) Equitable right of subrogation arises when the insurer settles the claim of the assured, for the entire loss. When there is an equitable subrogation in favour of the insurer, the insurer is allowed to stand in the shoes of the assured and enforce the rights of the assured against the wrongdoer.
(ii) Subrogation does not terminate nor puts an end to the right of the assured to sue the wrongdoer and recover the damages for the loss. Subrogation only entitles the insurer to receive back the amount paid to the assured, in terms of the principles of subrogation.
(iii) Where the assured executes a letter of subrogation, reducing the terms of subrogation, the rights of the insurer vis-à-vis the assured will be governed by the terms of the letter of subrogation.
(iv) A subrogation enables the insurer to exercise the rights of the assured against third parties in the name of the assured.
CS NO.56865 OF 2016 ROYAL SUNDRAM ALLIANCE INSURANCE CO. LTD. VS. VARUAN INTEGRATED L OGISTICS PVT LTD. page no.24 Consequently, any plaint, complaint or petition for recovery of compensation can be filed in the name of the assured, or by the assured represented by the insurer as subrogee-cum-attorney, or by the assured and the insurer as co-plaintiffs or co-
complainants.
(v) Where the assured executed a subrogation-cum-assignment in favour of the insurer (as contrasted from a subrogation), the assured is left with no right or interest. Consequently, the assured will no longer be entitled to sue the wrongdoer on its own account and for its own benefit. But as the instrument is a subrogation-cum-assignment, and not a mere assignment, the insurer has the choice of suing in its own name, or in the name of the assured, if the instrument so provides. The insurer becomes entitled to the entire amount recovered from the wrongdoer, that is, not only the amount that the insurer had paid to the assured, but also any amount received in excess of what was paid by it to the assured, if the instrument so provides."
(Emphasis supplied by me)
30. From a reading of the document Ex.PW-1/10, I find that Ex.PW-1/10 is purely an agreement of subrogation-cum- special power of attorney. Ex.PW-1/10 is titled as "AGREEMENT OF SUBROGATION CUM SPECIAL POWER OF ATTORNEY". The assured i.e. M/s. Hindustan Coca Cola Beverages is referred to as the "Subrogor" and the insurer i.e. M/s. Royal Sundaram Alliance Insurance Company is referred to as the "Subrogee". Some of the relevant clauses of the document Ex.PW-1/10 are extracted hereunder:
CS NO.56865 OF 2016 ROYAL SUNDRAM ALLIANCE INSURANCE CO. LTD. VS. VARUAN INTEGRATED L OGISTICS PVT LTD. page no.25 "4. That the subrogor hereby subrogates to the subrogee, the same rights, title, interests and remedies as the subrogor has in consequence of or arising from loss/damage to the aforesaid subject matter, and the subrogor further hereby grants to the subrogee full power and authority to take and use all lawful ways and means to recover the said loss/damage from the aforesaid Service Provider or any other person representing the Service Provider.
5. That the Subrogor also hereby irrevocably authorises the subrogee to use the Subrogor's name in any suit, complaints, action or proceedings, claims or demands that the Subrogee may initiate or institute jointly and/or severally in the names of the Suberogor and/or Suberogee, as the case may be, in relation to any of the matters hereby subrogated to the Suberogee, in any court or tribunal or Authority and/or before any other quasi-judicial body, and the Subrogor undertakes for itself to assist and concur in any matters or proceedings which the Subrogee may deem expedient or necessary in any such suits, complaints, actions or proceedings and to execute all deeds and/or documents including any and all pleadings and releases which may be necessary therefor and generally to assist therein by all menas in the Subrogor's power, as and when required or requested for by the Subrogee.
6. That the Subrogor hereby appoints the Subrogee, represented through its officers and/or agents and their successors, severally, as the Subrogor's agents and attorneys with irrevocable power to receive or collect any and all such claims and to initiate, prosecute, compromise, arbitrate or withdraw at the Subrogee's expense of any and all legal proceedings which the Subrogee may deem necessary to enforce such claim, including proceeding before any arbitral tribunal, mediation or conciliation proceeding, and to execute in the Subrogor's name, any document(s) which may be CS NO.56865 OF 2016 ROYAL SUNDRAM ALLIANCE INSURANCE CO. LTD. VS. VARUAN INTEGRATED L OGISTICS PVT LTD. page no.26 necessary to carry into effect the purpose of this Agreement.
7. That in pursuance of the powers hereby conferred on the Subrogee by way of subrogation of the Subrogor's rights of recovery against the service provider in the Subrogee's favour, as also the power of attorney granted in the Subrogee's favour to act for the Subrogor, in the name of the Subrogor and on the Subrogor's behalf, the Subrogor authorizes the Subrogee to do all acts, deeds, and things as may lawfully be required to be done in that regard.
8. That the payment acknowledged and receipted for herein is accepted with the understanding that the said payment shall not enure to the benefit of any service provider or bailee under the provisions of any contract or carriage or otherwise; that in making the said pryment the subrogee does not waive any rights of subrogation or otherwise against any service provider or bailee, and acceptance of this receipt shall not prejudice or take away any rights or remedies which the said Subrogte would otherwise have by virtue of such payment.
9. That the Subrogor further agrees that any monies collected or received from any service providers, authorities or any person or persons, shall be the property of the Subrogor to the extent of the amount paid by the Subrogee to the Subrogor as mentioned in the preamble/recitals above, for having indemnified the Subrogor in the amount specified in the preamble/recitals above, as also any interest and/or any cost. The Subrogor also agrees that if any documents are received in the first instance by the Subrogor, the same shall be made over to the Subrogee immediately and forthwith, to the extent of the amount paid by the Subrogee (including interest) to the Subrogor as per the preamble/recitals above.
10. That the Subrogor hereby undertakes to CS NO.56865 OF 2016 ROYAL SUNDRAM ALLIANCE INSURANCE CO. LTD. VS. VARUAN INTEGRATED L OGISTICS PVT LTD. page no.27 co-operate and render at any time all assistance in the manner as required by the Subrogor to take lawful action against the service providers. The Subrogor further undertakes to preserve all its records pertaining to the matter at hand until the suit(s) proceedings/claims/demands/complaints/legal actions filed are disposed of and that the Subrogor shall depute its witness(s) to give evidence in the Court(s)/Tribunal/quasi-judicial bodies, etc., as the case may be, on all days of the hearing or as and when required to adduce evidence in the conduct of the suit(s) proceedings/claims/demands/complaints/legal actions. The Subroger undertakes to prevail upon its clearing agent(s) and/or persons acting on its behalf in the matter at hand to preserve their records and to co-operate and/or render necessary assistance as and when required.
11. That Subroger hereby agrees to refund any amount paid to it and/or such expenses as may have been incurred by the Subrogee, if due to any default on the part of the Subrogor in any manner, the suit(s) proceedings/claims/demands/complaints/legal actions against the service providers are prejudiced by the Subrogor's action(s)."
(Emphasis supplied by me)
31. The aforesaid clauses of the document Ex.PW-1/10 make it clear beyond doubt that the Ex.PW-1/10 is purely an agreement of subrogation-cum-special power of attorney. Ex.PW-1/10 is not an agreement of assignment or even an agreement of subrogation-cum-assignment. Even otherwise, the learned counsel for the plaintiff has not even argued that the Ex.PW-1/10 was an agreement of assignment. Thus, the present suit was not maintainable in CS NO.56865 OF 2016 ROYAL SUNDRAM ALLIANCE INSURANCE CO. LTD. VS. VARUAN INTEGRATED L OGISTICS PVT LTD. page no.28 the name of the insurer only as the sole plaintiff. The suit could have been maintainable against the defendant no.1 by the assured through the insurer or by the assured and the insurer as co-plaintiffs. However, what has been done by the insurer in the present case is to file the present suit as the sole plaintiff against the defendant no.1 which is a third party. The assured has been arrayed as defendant no.2 and not as a co-plaintiff. There has been no appearance on behalf of the defendant no.2 in the present suit. The defendant no.2 was proceeded ex parte vide order dated 08/07/2014. The insurer i.e. the plaintiff herein never moved the Court for transposing the defendant no.2 as a co-plaintiff. The insurer also never sought to represent the assured i.e. the defendant no.2 as an attorney. Hence, the intention of the plaintiff was very clear, i.e. to file the suit as a sole plaintiff. I am afraid this would be fatal to the case of the plaintiff as the suit was not maintainable in the name of the insurer simpliciter. The suit ought to have been filed by the assured through the insurer or by the assured and the insurer as co-plaintiffs.
32. In light of the aforesaid, I would hold that the suit in the present form is not maintainable and is thus, liable to be dismissed. The Issues 3 and 4 are thus decided against the plaintiff and in favour of the defendant no.1.
Issue 1: Whether the plaintiff is entitled for a decree of recovery of amount of ₹ 3,73,364/-as prayed for? OPP CS NO.56865 OF 2016 ROYAL SUNDRAM ALLIANCE INSURANCE CO. LTD. VS. VARUAN INTEGRATED L OGISTICS PVT LTD. page no.29
33. I have already held that the plaintiff has failed to prove that the suit has been instituted by an authorised person on behalf of the plaintiff company. I have also held that the present suit is not maintainable by the insurer as sole plaintiff and the suit would fail on this ground. Hence, the plaintiff would not be entitled to any relief as prayed for in the plaint and the suit is liable to be dismissed.
34. However, even assuming that the present suit has been filed by a person properly authorised and also that the suit would be maintainable in the present form, even then, on the evidence on record, I find that the plaintiff would not be entitled to any relief.
35. The suit has been filed by the plaintiff on the basis of subrogation by the defendant no.2 and that the defendant no.2 has suffered damages at the hands of the defendant no.1. The consignment note (Ex.PW-1/4) executed between the defendant no.1 and the defendant no.2 constitutes the contract between these two defendants. Condition 4 of the terms and conditions contained in the Ex.PW-1/4 states as under:
"4. The company does not take any kind of responsibility for any loss or damage due to strikes, riots, disturbances, fire explosion or accident however all reasonable precautions are taken against such contingencies."
(Emphasis supplied)
36. As per Condition 4 of Ex.PW-1/4, the defendant no.1 was not liable for any loss or damage to the defendant no.2 due to any accident, however, subject to that all reasonable precautions were being taken against such contingencies.
CS NO.56865 OF 2016 ROYAL SUNDRAM ALLIANCE INSURANCE CO. LTD. VS. VARUAN INTEGRATED L OGISTICS PVT LTD. page no.30 The nature of the accident in the present case is contained in the surveryor's report (Ex.PW-1/8) which is relied upon by the plaintiff. In Ex.PW-1/8, in the background portion of the report it is stated as follows:
"3) As informed by the driver, when the truck was climbing down the sloppy road of Saputara Ghat, ahead of approx. 77 Km of Nasik of Nasik-Saputara Highway, suddenly one oncoming vehicle came across on the way and to avoid collision, the driver steered vehicle to the road-edge side but due to the mountain road, he couldn't stop the vehicle and the carrying vehicle toppled down on the road and as a result, the PET perform boxes were thrown out of the load body and damaged."
37. Further, in Ex.PW-1/8, the cause of damages is noted as follows:
"CAUSE of DAMAGE The cause of the damage to the consignment of Pet Perform is an accident of the carrying vehicle # GJ6XX-9509 during transit from Pune, Maharashtra to Goblej, Kheda."
38. The plaintiff has relied upon Ex.PW-1/8 i.e. the surveyor's report to argue that the liability of the defendant no.1 in respect of the loss caused is squarely proved through Ex.PW-1/8. However, I am unable to accept this submission. In the surveyor's report Ex.PW-1/8 there is no report of any negligence or carelessness by the defendant no.1. Ex.PW-1/8 does not even state that reasonable care or caution was not exercised by the defendant no.1. Ex.PW-1/8 records the information provided by the driver CS NO.56865 OF 2016 ROYAL SUNDRAM ALLIANCE INSURANCE CO. LTD. VS. VARUAN INTEGRATED L OGISTICS PVT LTD. page no.31 of the vehicle to the effect that when the truck was climbing down the slope, suddenly an oncoming vehicle came across the way and to avoid collision, the driver steered the vehicle to the road edge side but due to mountain road, he could not stop the vehicle and the vehicle toppled due to which the consignment was damaged.
39. Once the explanation given by the driver of the vehicle was recorded in the surveyor's report Ex.PW-1/8 which is relied upon by the plaintiff, the onus was upon the plaintiff to lead evidence to show that the defendant no.1 had failed to take reasonable precautions. I do not find that the plaintiff has led any evidence to discharge this onus. Ex.PW-1/8 does not even allege that the defendant no.1 did not take reasonable precaution and rather records the explanation of the accident given by the driver of the vehicle. Ex.PW-1/8 also records that there was no FIR filed in relation to the accident. Hence, Ex.PW-1/8 does not help the case of the plaintiff in proving that the defendant no.1 was guilty of negligence or lack of reasonable care.
40. The plaintiff has also relied upon the certificate of facts Ex.PW-1/5 issued by the defendant no.1 to argue that the liability of the defendant no.1 in respect of the loss caused is clearly proved. However, again I am unable to accept this submission. In so far as Ex.PW-1/5 i.e. the certificate of facts issued by the defendant no.1 to the defendant no.2 is concerned, the same is a document which is marked CS NO.56865 OF 2016 ROYAL SUNDRAM ALLIANCE INSURANCE CO. LTD. VS. VARUAN INTEGRATED L OGISTICS PVT LTD. page no.32 "without prejudice" and clearly mentions that the issuance of the certificate was without prejudice to the rights and contentions of the defendant no.1 solely to enable lodging an insurance claim and that the same does not in any manner constitute admission of negligence, default, responsibility, liability or claim for loss or damage. Ex.PW-1/5 further records that the certificate was issued on the express condition that no claim shall be lodged by the insurer on the basis of the certificate against the defendant no.1 before or Court/Tribunal/Forum/Prescribed authority. Hence, Ex.PW-1/5 could not be relied upon by the plaintiff against the defendant no.1. In any case, I do not find that Ex.PW-1/5 contains any admission of negligence or carelessness by the defendant no.1. It was only issued to quantify the damages to assist the defendant no.2 to lodge its insurance claims.
41. Thus, the plaintiff has failed to discharge the onus to prove that the accident was caused due to the carelessness or negligence of the defendant no.1. Hence, even on this basis, the plaintiff is not entitled to any relief in the suit.
Issue 2: If the Issue no.1 is proved in affirmative, whether the plaintiff is entitled for pendente lite and future interest as prayed for and if so, at what rate? OPP
42. In as much as the Issue No.1 has been decided against the plaintiff, as a corollary even Issue No.2 relating to the interest is also decided against the plaintiff.
CS NO.56865 OF 2016 ROYAL SUNDRAM ALLIANCE INSURANCE CO. LTD. VS. VARUAN INTEGRATED L OGISTICS PVT LTD. page no.33 Issue 5:Whether the plaintiff has not come to the court with clean hands? OPD
43. In as much as I have held that the present suit was not maintainable by the insurer as sole plaintiff and the suit would fail on this ground, I do not deem it necessary to go into the question whether the plaintiff had come to the court with clean hands.
44. In the result, the suit is dismissed.
45. Parties to bear own costs.
Decree-sheet be drawn up accordingly.
Judgment pronounced in open Court.
File be consigned to record room.
(SATYABRATA PANDA) Additional District Judge-04 Judge Code- DL01057 PHC/New Delhi/19.12.2022 CS NO.56865 OF 2016 ROYAL SUNDRAM ALLIANCE INSURANCE CO. LTD. VS. VARUAN INTEGRATED L OGISTICS PVT LTD. page no.34